Introduction:

The Gauhati High Court has reiterated that a person seeking registration of a First Information Report cannot ordinarily bypass the statutory remedies available under the Bharatiya Nagarik Suraksha Sanhita, 2023 and directly invoke the extraordinary writ jurisdiction of the High Court under Article 226 of the Constitution. Where the police allegedly refuse to register information disclosing a cognizable offence, the aggrieved person must first follow the statutory mechanism provided under the BNSS before seeking intervention through a writ petition.

Justice Manish Choudhury made the observation while dealing with Satyabrata Dey v. State of Assam & Ors., in which the petitioner sought a direction from the Gauhati High Court to the authorities to register an FIR and initiate a criminal investigation. The Court found that the petitioner had directly approached the High Court without first availing the remedies available before the Superintendent of Police and the jurisdictional Magistrate under the BNSS.

The ruling is significant because it explains the procedural route that must ordinarily be followed when a person alleges that the police have failed or refused to register an FIR relating to a cognizable offence. Although the High Court possesses wide powers under Article 226, those powers are extraordinary in nature and are not intended to replace statutory remedies specifically created by the criminal procedure law.

The controversy arose out of an alleged irregularity in a tender process conducted by the Lanka Municipal Board. The Municipal Board had invited quotations for the supply of sand gravel. According to the petitioner, he had submitted a quotation of Rs.925 per cubic metre and his offer was the lowest among the bids received.

Despite his claim of being the lowest bidder, the petitioner alleged that the Municipal Board accepted the quotation of another person who had quoted Rs.1,250 per cubic metre. He further alleged that the successful tenderer had failed to submit a Tax Clearance Certificate along with the tender documents. On the basis of these allegations, the petitioner claimed that the tender process involved irregularities warranting a criminal investigation.

The petitioner had earlier approached the High Court seeking directions for initiation of a criminal investigation into the alleged tender irregularities. However, the earlier writ petition was dismissed because the petitioner had not first lodged an FIR before seeking writ relief. At the same time, the Court granted him liberty to take recourse to the appropriate remedies available under law.

Thereafter, the petitioner stated that he sent an FIR by registered post to the Officer-in-Charge of Lanka Police Station. According to him, despite the information being sent to the police, no FIR was registered and no criminal investigation was initiated.

The petitioner consequently returned to the Gauhati High Court under Article 226 of the Constitution, seeking a direction to the respondent authorities to register the FIR and investigate the alleged offences. The State, however, opposed the writ petition on the ground that the petitioner had failed to exhaust the statutory remedies specifically provided under the BNSS.

The High Court therefore had to consider whether a person who claims that the police have failed to register an FIR can directly seek a writ of mandamus for registration and investigation without first approaching the superior police authority and, thereafter, the jurisdictional Magistrate.

The Court examined the statutory framework under the BNSS, which has replaced the Code of Criminal Procedure, 1973. It noted that Section 175 of the BNSS substantially corresponds to the earlier framework under Section 156 of the CrPC in relation to the Magistrate’s powers concerning investigation. The Court also considered Section 173(4), which provides a remedy before the Superintendent of Police where an officer-in-charge refuses to record information relating to a cognizable offence.

Thus, the case was not concerned with whether the petitioner’s allegations ultimately disclosed the commission of a criminal offence. The central issue was procedural: whether the High Court should exercise its writ jurisdiction at the first instance when the petitioner had not utilised the statutory remedies expressly available under the BNSS.

Arguments of the Parties:

The petitioner contended that the circumstances surrounding the tender process disclosed serious irregularities requiring criminal investigation. According to him, the Lanka Municipal Board had invited quotations for the supply of sand gravel, and he had submitted the lowest quotation at Rs.925 per cubic metre. Despite this, the tender was allegedly awarded to another bidder whose quotation was substantially higher at Rs.1,250 per cubic metre.

The petitioner further alleged that the successful tenderer had not submitted a Tax Clearance Certificate along with the tender documents. In his view, the acceptance of a higher quotation despite his lower bid, coupled with the alleged deficiency in the successful bidder’s documentation, raised questions that could not be treated as a mere contractual or administrative dispute. He claimed that the circumstances justified a criminal investigation.

The petitioner also relied on the fact that he had taken steps after the dismissal of his earlier writ petition. Since the earlier petition had been dismissed on the ground that he had not first lodged an FIR, he claimed that he subsequently sent the FIR by registered post to the Officer-in-Charge of Lanka Police Station.

According to the petitioner, the police nevertheless failed to register the information as an FIR or commence an investigation. He therefore argued that the inaction of the police left him with no effective alternative except to invoke the writ jurisdiction of the High Court.

The petitioner’s case was essentially that where the police fail to perform their duty of registering and investigating a cognizable offence, the High Court can issue appropriate directions under Article 226. He sought a direction requiring the respondent authorities to register the FIR and initiate criminal proceedings on the basis of the allegations already communicated to the police.

The respondents, particularly the State authorities, opposed the petition on the ground that the petitioner had approached the High Court prematurely. They submitted that the BNSS provides a specific and structured statutory mechanism for a person aggrieved by the refusal or failure of the police to register information relating to a cognizable offence.

The State pointed out that under Section 173(4) of the BNSS, an aggrieved person has the remedy of approaching the Superintendent of Police when an officer-in-charge refuses to record information. The superior police authority can then examine the matter and, if the information discloses a cognizable offence, take appropriate action in accordance with law.

If the statutory remedy before the superior police authority does not provide relief, the BNSS further provides recourse before the jurisdictional Magistrate. Under Section 175(3), the Magistrate has the statutory power to consider a request for investigation in accordance with the procedure established by law.

The State therefore argued that the petitioner could not ignore this statutory sequence and directly seek a writ of mandamus from the High Court. The existence of an extraordinary constitutional remedy does not mean that a litigant may ordinarily bypass an effective statutory remedy specifically created to address the very grievance raised in the petition.

The respondents also highlighted that the petitioner had not approached the jurisdictional Judicial Magistrate at any stage. Even after alleging that his information had not been acted upon by the Officer-in-Charge, he had not pursued the complete statutory route contemplated under the BNSS.

The State thus submitted that the writ petition was not maintainable at that stage because the statutory remedies had not been exhausted. The High Court, according to the respondents, should not become the first forum for resolving every allegation of police inaction, particularly when criminal procedure law itself provides a hierarchy of remedies.

The competing positions therefore reflected an important tension between constitutional powers and statutory procedure. The petitioner relied upon the High Court’s broad power to protect legal rights and ensure that public authorities act in accordance with law. The State, however, maintained that extraordinary jurisdiction should ordinarily be exercised only after the remedies expressly provided by the criminal procedure statute have been pursued.

Court’s Judgment:

The Gauhati High Court declined to entertain the writ petition and held that the petitioner had adopted the writ route prematurely. Justice Manish Choudhury observed that the petitioner had directly invoked the writ jurisdiction of the High Court for registration of an FIR and initiation of criminal proceedings without availing the statutory remedies available under the BNSS.

The Court emphasised that the existence of a statutory mechanism is highly relevant when a litigant seeks extraordinary constitutional intervention. The High Court’s writ jurisdiction under Article 226 is undoubtedly wide, but it is not intended to routinely substitute the remedies specifically created by legislation.

The Court noted that the criminal procedural framework has undergone a statutory transition with the replacement of the Code of Criminal Procedure, 1973 by the Bharatiya Nagarik Suraksha Sanhita, 2023. Consequently, disputes concerning non-registration of an FIR must now be examined with reference to the remedies available under the BNSS.

The Court referred to Section 173(4) of the BNSS, which provides a remedy to a person aggrieved by the refusal of an officer-in-charge to record information relating to a cognizable offence. Such a person may approach the Superintendent of Police and bring the information to the notice of the superior police authority.

This remedy serves an important purpose. Before invoking judicial intervention, the grievance is first placed before a higher authority within the police hierarchy. The Superintendent of Police can consider whether the information discloses a cognizable offence and whether further action is required under the law.

The Court further considered Section 175(3) of the BNSS, under which a person may approach the jurisdictional Magistrate in accordance with the statutory procedure when the remedies before the police authorities do not result in appropriate action. The High Court noted that the framework under the BNSS is akin to the earlier scheme under the CrPC, particularly in relation to the powers of the Magistrate concerning investigation.

Thus, the statutory procedure does not leave an aggrieved person without a remedy merely because an FIR is not registered at the police-station level. The law creates a graduated mechanism. The person can first approach the superior police authority under Section 173(4) and thereafter invoke the jurisdiction of the competent Magistrate under Section 175(3), subject to compliance with the procedure and formalities prescribed by law.

Applying this framework to the facts of the case, the Court found that the petitioner had not approached the jurisdictional Judicial Magistrate seeking registration of the FIR. The pleadings did not show that he had exhausted the remedy available under Section 175(3).

The Court also took note of the specific nature of the prayer made in the writ petition. The petitioner had sought a direction for initiation of an investigation through registration of an FIR without having first approached the jurisdictional Magistrate. In the Court’s view, such direct recourse to writ jurisdiction at the first instance was contrary to the settled principles governing the exercise of extraordinary jurisdiction.

The Court’s reasoning is based on the principle that where a statute provides a specific and efficacious remedy, that remedy should ordinarily be pursued before seeking constitutional intervention. The rule of exhaustion of alternative remedies is not an absolute bar on the exercise of writ jurisdiction. There may be exceptional circumstances involving violations of fundamental rights, lack of jurisdiction, breach of natural justice or other situations warranting immediate intervention. However, the present case did not disclose circumstances requiring the High Court to bypass the statutory criminal procedure mechanism.

The Court therefore held that the writ petition was premature. The fact that the petitioner alleged non-registration of an FIR did not automatically justify direct intervention under Article 226 when the BNSS itself provided a remedy for such a grievance.

Importantly, the Court did not examine whether the allegations concerning the tender process actually disclosed a criminal offence. The High Court consciously avoided expressing any opinion on the merits of the petitioner’s allegations. It clarified that its observations were confined to the question of the proper procedural route and should not be understood as a finding either that an offence had been committed or that no offence was made out.

This clarification was significant because the rejection of the writ petition was not a decision on the substance of the complaint. The Court did not conclude that the allegations were false, insufficient or incapable of attracting criminal law. It merely held that the petitioner had approached the wrong forum at the wrong stage.

The High Court consequently granted liberty to the petitioner to avail the remedies under the BNSS. The petitioner was permitted to approach the Superintendent of Police under Section 173(4) and, thereafter, the jurisdictional Magistrate under Section 175(3), following the procedure and formalities prescribed by those provisions.

The decision is particularly important after the enactment of the BNSS because it highlights the statutory route now available to persons complaining of non-registration of cognizable offences. The replacement of the CrPC does not mean that litigants can directly bypass the procedural hierarchy and approach constitutional courts in every case of alleged police inaction.

The ruling also serves a broader purpose in the administration of justice. High Courts exercise extraordinary jurisdiction over a vast range of constitutional, administrative and legal disputes. If every person dissatisfied with police inaction were to directly approach the High Court without first utilising the remedies before superior police authorities and Magistrates, the statutory mechanism specifically designed for such grievances would become ineffective.

The requirement to follow the statutory route also ensures that criminal courts exercise their designated role in supervising the initiation of investigations where legally permissible. Magistrates are not merely passive judicial officers in the criminal justice system; the law specifically confers powers upon them to consider requests concerning investigation.

At the same time, the judgment should not be understood as completely excluding writ jurisdiction in all matters relating to FIR registration. The Court’s reasoning is based on the facts before it and the petitioner’s failure to exhaust the available statutory remedies. In an appropriate exceptional case, constitutional courts may still exercise their powers where the circumstances justify such intervention. However, where an adequate statutory mechanism exists and no exceptional circumstances are demonstrated, a petitioner cannot ordinarily insist that the High Court act as the first forum.

The Gauhati High Court’s ruling therefore reinforces procedural discipline in criminal law. A person aggrieved by the non-registration of an FIR must ordinarily proceed through the mechanism created by the BNSS rather than immediately seeking a writ of mandamus from the High Court.

The case also illustrates the importance of carefully distinguishing between a grievance regarding police inaction and the merits of the underlying criminal allegations. The former concerns the procedure through which a complaint must be pursued, while the latter concerns whether the facts actually disclose a cognizable offence. In this case, the High Court decided only the procedural issue and left the merits entirely open for consideration by the competent authorities or courts.

Ultimately, the Court found that the writ petition was premature and not fit to be entertained. The petitioner was required to pursue the statutory remedies under Section 173(4) read with Section 175(3) of the BNSS before seeking extraordinary writ relief.

The ruling sends a clear message that Article 226 is not a shortcut for bypassing remedies specifically provided under criminal procedure law. Where the police allegedly fail to register an FIR, the aggrieved person must ordinarily first approach the Superintendent of Police and, if necessary, the jurisdictional Magistrate. Only after following the statutory framework, or where exceptional circumstances justify immediate constitutional intervention, can the question of approaching the High Court arise.